Apple’s Samsung Sales Ban Decision Pushed to August

Apple will know by August 1, 2013 if its request to ban the import and sale of certain Samsung products as part of a U.S. International Trade Commission (ITC) complaint will be granted, FOSS Patentsreported Wednesday. The date represents an effective delay of approximately six months after the ITC’s top-level decision-making body (the Commission) agreed to review the case and asked the lower judge to revisit his rulings on two of the four Apple patents that the judge originally held Samsung had violated.

Apple filed its ITC complaint against Samsung in July 2011, about a week after Samsung filed its own complaint against Apple. In its complaint, Apple argued that seven of its patents had been infringed upon by Samsung, and it asked the ITC to block the import and sale of all infringing products. Of those seven patents, Administrative Law Judge Thomas B. Pender held in October that four Apple patents had indeed been infringed by Samsung. These included:

The Commission will review Judge Pender’s decision on all four patents but, before it does, it has asked him to revisit his ruling on two of them, RE41,922 and 7,912,501. In each case there are inconsistencies between related claims and the preliminary ruling which the judge will now have a chance to reconcile before the Commission peforms its full review.

Both Judge Pender's review and the Commission could find in Samsung's favor, but the Korean company must be cleared of infringement on all patents in order to safely avoid an import ban. With Samsung found to have infringed four Apple patents, it is likely that Apple will prevail on at least one of them after all reviews have been completed.

Due to the delay, however, it is also likely that both companies will have moved on to new products that implement new patents by the time the Commission makes its final review. In that sense, even if the company prevails on every claim, the delay is not a positive sign for Apple.

Late Tuesday, Judge Pender set the schedule for his review of the decision. He’ll make his ruling no later than April 1, 2013 and the Commission will then have until August 1, 2013 to review the entire case. Should the Commission uphold the ruling against Samsung and order an import ban, the case would then fall to a 60-day Presidential review period during which the Obama administration has the authority to veto the ban. However, FOSS Patents’ Florian Mueller states that such a decision by the White House is extremely rare in these types of situations.

Due to the drawn-out nature of this dispute, Samsung has had many months to modify the design of its hardware and software to avoid infringing Apple patents without dramatically altering functionality. These actions, called “designarounds,” can often be highly successful for those defending against patent infringement claims.

In the case at hand, however, the exact nature of how Samsung implemented designarounds is not publicly available. It is therefore unknown if a final Commission ruling on the case will affect Samsung’s products, many of which have already shipped, that implement designarounds.

Samsung’s separate ITC complaint against Apple, mentioned above, is currently scheduled for a final ruling on March 7, 2013 after severaldelays.